J. Chackochan v. State of Kerala and Others

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: Amit Rawal
Judgment Date: 2023-09-20
Court Decision / Holding: Writ petition allowed; Ext.P11 quashed; recovery of the excess payment not sustainable in law; Masih doctrine invoked to protect the petitioner from recovery.
Final Disposition: Writ petition allowed; Ext.P11 quashed; no recovery of excess payment.

Parties to the Case

Appellants / Petitioners

J. Chackochan

Respondents

State of Kerala represented by its Secretary to Government, General Education Department, Secretariat, Thiruvananthapuram
Director of Public Instructions, Jagathy, Thiruvananthapuram
Deputy Director of Education, Alappuzha
Assistant Education Officer, Moncombu
Headmaster, SHUPS School, Kannady, Alappuzha

Legal Representation & Advocates

Counsels for Petitioners

• Sri. V. A. Muhammed
• Sri. V. Rajasekharan Nair

Counsels for Respondents

• Sri. Justin Jacob, Senior Government Pleader

Case Synopsis & Summary

J. Chackochan, a L.G. Sanskrit Full Time Teacher at SHU P School, Kannady, challenged an audit objection that his pay fixation in 2005-2006 included his part-time service (15.06.1998 to 08.09.2002) in computing eight years of service for a revised pay in the scale 6680-10790. His service record spans 11.10.1993 to 09.09.2002, with periods as FT and PT teacher, all approved by controlling officers. His pay was fixed at Rs. 7,650 in the 6680-10790 scale with effect from 01.09.2005 (Ext.P8), followed by higher fixations in 2009 and 2011 (Exts.P9 and P10). On audit, the Deputy Director of Education objected (Ext.P11) to including part-time service in pay fixation, arguing it could not be reckoned for benefits. The petitioner argued he was not at fault and drew on the principle laid down in the Supreme Court’s decision in Mohammed Rafiq Masih (White Washer), contending that no recovery could be ordered after a long interval where there was no mens rea. After hearing, the High Court held the audit objection unsustainable, emphasized the nine-year gap since fixation, and found no fault by the petitioner. The writ petition was allowed, Ext.P11 quashed, and the Masih doctrine applied to deny recovery.

Legal Doctrines & Maxims

Mens rea
Doctrine of no-recovery in good-faith payments (Masih principle)

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioner argued that he was not at fault because the payment was fixed in good faith and there was no mens rea. He relied on the Supreme Court’s Mohammed Rafiq Masih (White Washer) decision and Kerala decisions to urge that recovery after nine years is not permissible when the payment was made under audit objections and the recipient acted without fault.

Contentions of Respondents

The respondents contended that the audit objection (Ext.P11) rightly held that part-time service could not be reckoned for pay fixation; therefore, recovery of excess payment was justified and in accordance with law.

Cited Precedents (1)

Case Name	Citation	Treatment	Explanation
State of Punjab and Others v. Mohammed Rafiq Masih (White Washer) and Others	2015 (4) SCC 334	Positive	Court relied on the Masih principle to hold that recovery of excess payments should not be ordered where there is no fault or mens rea and where that payment was made in good faith, applying it to deny recovery in this case.

Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE AMIT RAWAL** **WEDNESDAY, THE 20[TH] DAY OF SEPTEMBER 2023/29TH BHADRA, 1945** ## **WP(C) NO. 29881 OF 2015** ## **PETITIONER:** **J.CHACKOCHAN AGED 41 YEARS S/O.JOSEPH, L.G.SANSKRIT FULL TIME TEACHER, S.H.U.P.SCHOOL, P.O.KANNADY, PULINCUNNOO, ALAPPUZHA DISTRICT.** **BY ADVS. SRI.V.A.MUHAMMED SRI.V.RAJASEKHARAN NAIR** ## **RESPONDENTS:** - **1 THE STATE OF KERALA REPRESENTED BY ITS SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM-695 001.** - **2 THE DIRECTOR OF POBLIC INSTRUCTIONS JAGATHY, THIRUVANANTHAPURAM-695 014.** - **3 THE DEPUTY DIRECTOR OF EDUCATION ALAPPUZHA-688 001.** - **4 THE ASSISSTANT EDUCATIONAL OFFICER MONCOMBU P.O., THEKKEKKARA-688 503, ALAPPUZHA DISTRICT.** **5 THE HEADMISTER S.H.U.P.SCHOOL, KANNADY P.O., KANNADY, PULINCUNNO, ALAPPUZHA DISTRICT-688 504.** W.P.(C.) No. 29881/2015 2 **R1 TO R4 BY SRI.JUSTIN JACOB, SENIOR GOVERNMENT PLEADER** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 20.09.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W.P.(C.) No. 29881/2015 3 ## JUDGMENT The question involved in the writ petition is whether, after having given the benefit of revision in the pay scale fixing the salary at Rs.7,650/- in the scale of Rs.6680 -10790 with effect from 01.09.2005 reckoning 8 years of service and after 10 years, on the basis of the audit objection, seek the recovery of the amount on the ground that the benefit given included the part time service with effect from 05.06.1998 to 08.09.2002, is permissible in law ? The answer is 'No'. 2. The facts leading to the filing of this writ petition in brief are; the petitioner had approved service from 11.10.1993 as F.T.L.G Sanskrit teacher as per the dates given herein below:- i) 11.10.1993 to 05.01.1994 as F.T. L.G. Sanskrit Teacher ii) 06.01.1994 to 11.03.1994 as F.T. L.G. Sanskrit Teacher iii) 26.09.1995 to 23.12.1995 as F.T. L.G. Sanskrit Teacher iv) 05.07.1996 to 02.09.1996 as F.T. L.G. Sanskrit Teacher v) 15.06.1998 to onwards as P.T. L.G. Sanskrit Teacher vi) 01.11.2000 to 08.01.2001 as F.T. L.G. Sanskrit Teacher vii) 09.09.2002 onwards as F.T. L.G. Sanskrit Teacher W.P.(C.) No. 29881/2015 4 All the aforementioned appointments were approved by the Controlling Officers as per Exts.P1 to P7. The pay of the petitioner while working as L.G. Sanskrit Full-Time Teacher in SHUP School, Kannady, an aided U.P. School in Moncombu Educational Sub District in Kuttanad, Alappuzha Revenue District was revised in pay scale of Rs.6680 – 10790, at the rate of 7,650/-, with effect from 01.09.2005, reckoning 8 years of service including his part time service from 15.06.1998 to 08.09.2002 vide Ext.P8. Thereafter, vide Ext.P9 order dated 03.11.2009 his pay was fixed on a higher grade on completion of eight years of service in the pay scale of Rs.799012930 at Rs. 8,790/- with effect from 03.09.2009, and then in 2011 i.e., vide Ext.P10 dated 05.05.2011, fixed as Rs.15,380/- with effect from 01.09.2010 in the pay scale of Rs.14620- 25280. The Deputy Director of Education, Alappuzha on the basis of Ext.P11 Audit Objection slip dated 12.06.2015 objected Ext.P8 pay fixation order dated 16.05.2006 with effect from 01.09.2005 at Rs.7,650/- on the ground that the said pay fixation also included part time service which could not have been reckoned for service benefits. W.P.(C.) No. 29881/2015 5 3. Learned counsel appearing on behalf of the petitioner submitted that the petitioner was not at fault, any benefit given without any mens rea cannot be recovered in view of the law laid down by the Supreme Court in **State of Punjab and Others v. Mohammed Rafiq Masih (White Washer) and Others [2015 (4) SCC 334]** and also various judgments of this Court as well. The respondents supported the aforementioned ground of recovery only on the point of objections of the Audit, Ext.P11 that part-time service cannot be included for the purpose of fixation of the pay scale. 4. I have heard the learned counsel for the parties and appraised the paper book and of the view that the objections recorded in Ext.P11 for recovery of the amount is not sustainable in the eyes of law as the petitioner was not at fault. No recovery could have been made after a gap of almost nine years as the pay of the petitioner was fixed as Rs.7,650/-, with effect from 01.09.2005 reckoning 8 years of service including his part time service from 15.06.1998 to 08.09.2002, vide Ext.P8 order dated 16.05.2006. W.P.(C.) No. 29881/2015 6 The action of the respondents in raising the objection and seeking the recovery is not sustainable, thus, Ext.P11 is quashed. The writ petition is allowed in view of the ratio decidendi culled out in the judgment in **State of Punjab and Others v. Mohammed Rafiq Masih (White Washer) and Others** [2015 (4) SCC 334]. Sd/- AMIT RAWAL JUDGE DCS/29.09.2023 W.P.(C.) No. 29881/2015 7 ## **APPENDIX** ## **PETITIONER ANNEXURES** **EXT.P1. TRUE COPY OF THE APPOINTMENT ORDER OF THE PETITIONER DATED 11/10/1993 AND APPROVRAL THEREON.** **EXT.P2. TRUE COPY OF THE APPOINTMENT ORDER OF THE PETITIONER DATED 6/1/1994 AND APPROVRAL THEREON.** **EXT.P3. TRUE COPY OF THE APPOINTMENT ORDER OF THE PETITIONER DATED 26/9/1995 AND APPROVRAL THEREON.** **EXT.P4. TRUE COPY OF THE APPOINTMENT ORDER OF THE PETITIONER DATED 5/7/1996 AND APPROVRAL THEREON.** **EXT.P5. TRUE COPY OF THE APPOINTMENT ORDER OF THE PETITIONER DATED 15/6/1998 AND APPROVRAL THEREON.** **EXT.P6. TRUE COPY OF THE APPOINTMENT ORDER OF THE PETITIONER DATED 1/11/2000 AND APPROVRAL THEREON.** **EXT.P7. TRUE COPY OF THE APPOINTMENT ORDER OF THE PETITIONER DATED 09/09/2002 AND APPROVRAL THEREON.** **EXT.P8. TRUE COPY OF THE STATEMENT OF FIXATION OF PAY OF THE PETITIONER DATED 16/5/2006.** **EXT.P9. TRUE COPY OF THE STATEMENT OF FIXATION OF PAY OF THE PETITIONER DATED 31/11/2009** **EXT.P10. TRUE COPY OF THE STATEMENT OF FIXATION OF PAY OF THE PETITIONER DATED 5/5/2011.** **EXT.P11. TRUE COPY OF THE AUDIT OBJECTION SLIP OF THE DEPUTY DIREICTOR** **EXT.P12. TRUE COPY OF THE RELEVANT PAGE AND ANNEXURE II OF THE G.O.(P) NO.145/2006/FIN DATED 25/3/2006.** **EXT.P13. TRUE COPY OF THE DECISION REPORT IN 2012 (2) KLT 110 DATED 10/10/2011.** **EXT.P14. TRUE COPY OF THE JUDGMENT IN WA NO.428/2012 DATED 7/3/2012.** W.P.(C.) No. 29881/2015 8 **EXT.P15. TRUE COPY OF THE RP FILED BEFORE THE GOVERNMENT DATED 15/9/2015.** **EXT.P16. TRUE COPY OF THE G.O.(P) NO.560/2012/FIN DATED 11/10/2012 OF THE GOVERNMENT.**